92 Decision Citation: BVA 92-17402
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-04 244 ) DATE
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THE ISSUES
1. Entitlement to service connection for a peptic ulcer.
2. Entitlement to service connection for rheumatic
arthritis.
3. Entitlement to service connection for malnutrition.
ATTORNEY FOR THE BOARD
M. Siegel, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals
(hereinafter the Board) on appeal from rating actions of May
1991, August 1991 and February 1992 from the Manila,
Philippines, regional office (hereinafter RO). The notice
of disagreement was received on September 19, 1991, and the
statement of the case was issued on October 10, 1991. A
substantive appeal was received on November 7, 1991. A
supplemental statement of the case was issued on February
11, 1992, and another substantive appeal was received on
March 19, 1992.
The appeal was received at the Board on April 6, 1992, and
was docketed on April 9, 1992. The case is now ready for
appellate review.
The veteran's service has been verified as follows: Missing
status from March 1, 1943, to March 17, 1945; recognized
guerrilla service from March 18, 1945, to May 21, 1945; and
regular Philippine Army service from May 22, 1945, to
February 27, 1946.
REMAND
The veteran contends, in essence, that the RO erred when it
refused to grant service connection for a peptic ulcer,
rheumatic arthritis, and malnutrition. He alleges that he
has these disorders as a result of his military service.
In a statement dated in June 1991, the veteran refers to
treatment he received in 1949 for a gastric ulcer. We
believe that these records may be of probative value in
determining when a peptic ulcer was initially manifested.
In addition, a private physician, in a statement dated in
May 1991, cites treatment he has provided the veteran for
various disorders, to include a gastric ulcer and rheumatic
arthritis, but does not indicate when such treatment was
provided or the nature thereof. Again, we are of the
opinion that such information may be of significant
probative value.
The United States Court of Veterans Appeals (hereinafter the
Court) has held that the VA has a duty to assist veterans in
the development of facts pertinent to their claims, under
38 U.S.C. § 5107(a) and 38 C.F.R. § 3.103(a), to include
obtaining all pertinent medical records. Littke v.
Derwinski, 1 Vet.App. 90 (1990). We accordingly believe
that additional development of the medical record is
requisite prior to any further appellate review of the
veteran's claim.
Moreover, we note that the substantive appeal that was
received by the RO in November 1991 is signed by an attorney
who is identified as "Counsel for the Appellant." The
substantive appeal that was received in March 1992 includes
the signature of another attorney, who is this time
identified as both "Counsel for appeal of Appellant" and
"Disabled American Veteran." The veteran thereafter refers
to "my Counsel of Disabled American Veteran (DAV)."
However, the claims folder does not contain any properly
executed document from the veteran by which any person or
organization has been authorized to represent him.
Clarification of the record as to the veteran's
representative is necessary.
In view of the foregoing, this claim is REMANDED for the
following:
1. Following receipt from the veteran
of authorization for the release of
records, the RO should request that
Provincial Hospital, Iloilo City,
Philippines, provide legible copies of
all medical records pertaining to
treatment of the veteran for a gastric
ulcer at that facility in 1949.
2. Following receipt from the veteran
of proper authorization, the RO should
also request that Dr. Guillermo S.
Gentugao, Lacson Street, Bacolod City,
Negros Occidental, Philippines, provide
legible copies of all records, to
include all clinical records, compiled
in conjunction with his treatment of the
veteran for a gastric ulcer and
rheumatic arthritis.
3. The RO should also request that the
veteran duly execute either VA Form
21-22, Appointment of Veterans Service
Organization as Claimant's
Representative, or a statement by which
a private attorney is appointed as his
representative, or otherwise indicate
that he does not desire representation.
If, following completion of the above, the RO determines
that service connection for a gastric ulcer or rheumatic
arthritis still cannot be granted, the veteran and his
representative, if one has been appointed, should be
provided with a supplemental statement of the case and with
a reasonable opportunity to respond. The case should then
be returned to the Board for further review. (NOTE:
Notwithstanding resolution by the RO of the issues of
service connection for a gastric ulcer and rheumatic
arthritis to the veteran's satisfaction, the case must
nonetheless be returned to the Board for appellate
consideration of the issue of service connection for
malnutrition, Board review of which is being held in
abeyance pending completion of the actions requested in this
REMAND.)
The veteran need take no action until he is so informed.
The purposes of this REMAND are to obtain additional medical
evidence and to ensure compliance with due process
considerations.
Appellate review of the issue of entitlement to service
connection for malnutrition is held in abeyance pending
completion of the actions requested in this REMAND.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
C. P. RUSSELL
JACK W. BLASINGAME
*38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C. § 7252, only a decision of the Board of
Veterans' Appeals is appealable to the United States Court
of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal.